Can an Arkansas state legislator earn income from a contract with a Metropolitan Planning Organization that is funded by an Arkansas Economic Development District?

Plain-English summary

Representative Frank Glidewell asked the Attorney General whether an Arkansas legislator could draw a salary from the General Assembly while also receiving income from a contract with a Metropolitan Planning Organization (MPO) located in Arkansas and funded through an Arkansas Economic Development District. The concern was whether this combination of paychecks tripped Article 5, section 10 of the Arkansas Constitution (the prohibition on legislators holding a "civil office under this State" during their term) or any other constitutional or statutory bar.

Attorney General Leslie Rutledge concluded that none of the formal bars applied. Article 5, section 10 only prohibits a legislator from being "appointed or elected to any civil office under this State," and an MPO contract is neither an appointment nor an election to a state civil office. The dual-employment statutes at Ark. Code Ann. §§ 21-1-401 and 21-1-403 only restrict contracts and sub-grants between legislators and "state agencies," and the AG concluded that neither MPOs (which are federal-law creatures of 23 U.S.C. § 134) nor Arkansas economic development districts (which are voluntary multi-county nonprofits under Ark. Code Ann. § 14-166-202) qualify as state agencies. The legislator was, however, still subject to the Code of Ethics in Ark. Code Ann. §§ 21-8-301 through 21-8-309 and §§ 21-8-701 through 21-8-804, including the prohibition on using office for personal benefit and the obligations to file financial-interest statements and to report conflicts.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Arkansas legislature has revisited the legislative ethics statutes multiple times in recent years. The "state agency" definition in § 21-1-401, the disclosure rules at § 21-8-701, and the conflict-of-interest reporting framework at § 21-8-803 may have been amended. Anyone testing this kind of arrangement today should pull the current versions of those statutes and check for any newer AG opinions or Ethics Commission interpretations.

Historical context

The factual pattern Representative Glidewell raised

A current member of the Arkansas General Assembly received income from a contract with a Metropolitan Planning Organization. The MPO was located in Arkansas, was created through the federal designation process under 23 U.S.C. § 134 (with parallel transit-side authority at 49 U.S.C. § 5303), and was funded by an Arkansas Economic Development District. The legislator continued to receive a legislative salary at the same time. The question was whether this combination violated the Arkansas Constitution or state statute.

The AG's three-step analysis (as of 2019)

Step 1: Article 5, section 10 (no dual civil office). The provision states: "No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State." The AG read the words as written. A contract with an MPO is not an appointment to, or election to, "a civil office under this State." The provision did not apply.

Step 2: The state-agency contract statutes. Under Ark. Code Ann. § 21-1-403, a "constitutional officer" (which includes legislators under § 21-1-401(1)) cannot enter into a contract or sub-grant with, or receive a sub-grant from, a "state agency" unless certain statutory requirements are met, and § 21-1-403(b) flatly prohibits members of the General Assembly from entering into professional and consultant services contracts with "state agencies." But "state agency" is defined narrowly in § 21-1-401(2) as "every board, commission, department, division, institution, and other office of state government." The AG concluded:

• An MPO is a federally designated transportation policy-making organization (per 23 U.S.C. § 134(j) and (k), which describe the MPO as cooperating "with the State"). It is not an office of state government.
• An Arkansas Economic Development District is one of the eight multi-county districts the state recognizes (§ 14-166-202(a)) and encourages but does not require (§ 14-166-201(1)). Its governing board is composed of locally elected officials (§ 14-166-203(b)), and operations are within the district's "local governing boards of directors" (§ 14-166-203(c)(1)).

Neither qualifies as a "state agency." The state-agency contract bars did not apply.

Step 3: Ethics-code obligations. The AG flagged that even though no constitutional or statutory bar prohibited the arrangement, the legislator was still bound by the Code of Ethics. Specifically:

• Section 21-8-304(a): no public official may "use or attempt to use his or her official position to secure special privileges or exemption" for himself, family, or those with whom he has a substantial financial relationship.
• Section 21-8-701: legislators must file statements of financial interest.
• Section 21-8-803: legislators must report all potential conflicts of interest.

Whether any of these duties were triggered, or violated, is a fact question outside the scope of an AG opinion. The Arkansas Ethics Commission, under § 7-6-218, has authority to investigate.

What this opinion did and did not decide

The opinion mapped statutory categories. It did not declare the MPO contract permissible without reservation. It said: the formal constitutional bar does not apply, the formal state-agency contract bar does not apply, but the catch-all ethics rules still apply, and that is for the Ethics Commission and prosecutors, not the AG.

Common questions

Q: Why did Article 5, section 10 not apply?
A: Because the legislator was not appointed or elected to "a civil office under this State." The constitutional provision targets dual office-holding in formal state offices, not contracts or fee-based work for entities that are not state offices.

Q: Why is an MPO not a "state agency" for purposes of § 21-1-401?
A: MPOs are creatures of federal transportation law. They are designated through federal procedures (23 U.S.C. § 134), they cooperate with the state, and they are not boards, commissions, departments, divisions, institutions, or offices of state government in the Arkansas Code's narrow sense.

Q: Why is an Arkansas Economic Development District not a "state agency"?
A: The enabling statutes treat them as voluntary multi-county nonprofits, encouraged but not required by state law, with locally elected boards of directors and discretion over their own operations. The AG concluded those features place them outside the "state agency" definition.

Q: Were there ethics issues to worry about?
A: Yes. The AG was explicit: just because the formal constitutional and statutory bars did not apply did not mean the legislator was off the hook. Sections 21-8-301 through 21-8-309 (general ethics), 21-8-701 (financial-interest statements), and 21-8-801 through 21-8-804 (conflict reporting) still applied. The AG would not opine on whether they were violated, because that is a fact question for the Ethics Commission.

Q: Could a different fact pattern (e.g., a direct state-agency contract) change the answer?
A: Yes. Section 21-1-403 still bars legislators from contracting with actual state agencies for professional or consultant services, with limited exceptions. The opinion turned on the specific status of MPOs and economic development districts.

Background and statutory framework

Article 5, section 10 of the Arkansas Constitution prohibits a legislator from being "appointed or elected to any civil office under this State" during the term for which he or she was elected. It is a dual-office-holding bar, not a contract bar.

Ark. Code Ann. § 21-1-401(1) defines "constitutional officer" to include members of the General Assembly. Section 21-1-401(2) defines "state agency" narrowly as "every board, commission, department, division, institution, and other office of state government."

Section 21-1-403(a) prohibits a constitutional officer from entering into any contract or grant with, or receiving any sub-grant from, a state agency unless statutory requirements are met. Section 21-1-403(b) flatly bars General Assembly members from entering into professional and consultant services contracts with state agencies.

Title 14, chapter 166 establishes the legal framework for Arkansas economic development districts. Section 14-166-201(1) describes the purpose as encouraging "multi-county planning and development organizations which have been formed, or which may be formed in the future, as voluntary nonprofit associations." Section 14-166-202(a) recognizes eight districts. Section 14-166-203(b) places elected local officials in the majority of district governing boards.

Federal MPO law is at 23 U.S.C. § 134 (highway side) and 49 U.S.C. § 5303 (transit side). An MPO is designated for an urbanized area to perform a continuing, cooperative, and comprehensive transportation planning process.

The Arkansas Code of Ethics covers public officials and state employees in Ark. Code Ann. §§ 21-8-301 through 21-8-309 (general standards), §§ 21-8-701 through 21-8-704 (statements of financial interest), and §§ 21-8-801 through 21-8-804 (conflict-of-interest reporting). Enforcement is split between the Arkansas Ethics Commission (§ 7-6-218) and prosecuting attorneys (§ 21-8-303).

Citations and references

Constitutional and statutory provisions:

• Ark. Const. art. 5, § 10 (dual office-holding bar)
• Ark. Code Ann. § 21-1-401(1) (definition of "constitutional officer")
• Ark. Code Ann. § 21-1-401(2) (definition of "state agency")
• Ark. Code Ann. § 21-1-403(a), (b) (state-agency contract bar)
• Ark. Code Ann. § 14-166-201(1) (purpose of economic development districts)
• Ark. Code Ann. § 14-166-202(a) (recognition of eight districts)
• Ark. Code Ann. § 14-166-203(b), (c)(1) (local governance of districts)
• Ark. Code Ann. § 21-8-304(a) (no use of office for special privilege)
• Ark. Code Ann. § 21-8-701 (statements of financial interest)
• Ark. Code Ann. § 21-8-803 (conflict-of-interest reporting)
• Ark. Code Ann. § 7-6-218 (Ethics Commission jurisdiction)
• 23 U.S.C. § 134 (federal designation of MPOs)
• 49 U.S.C. § 5303 (federal designation of MPOs, transit)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2018-140
May 2, 2019

The Honorable Frank Glidewell
State Representative
10409 Castleton Street
Fort Smith, AR 72908-9392

Dear Representative Glidewell:

This is in response to your request for an opinion regarding the following question:

Whether holding a position as an elected member of the Arkansas Legislature (and receiving a salary for such service), while at the same time receiving income from a contract with a Metropolitan Planning Organization (as required by 23 U.S.C. §§ 134-135) which is located in Arkansas and funded by an Arkansas Economic Development District violates Arkansas Constitution, Article V, Section 10 or any other statute or constitutional provision?

RESPONSE

Article 5, section 10 of the Arkansas Constitution does not apply to the factual scenario you have outlined. Nor has my research revealed any state constitutional or statutory bar in this scenario. Some ethical requirements may come into play. But as noted below, the existence of any conflict, and the question whether any ethical violations have resulted, are matters falling outside the scope of an opinion from this office.

DISCUSSION

Article 5, section 10 states that "[n]o Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State." There is no indication under the factual scenario you have outlined that the legislator in question has been elected or appointed to a "civil office" under this State. Accordingly, Article 5, section 10 does not apply.

Furthermore, my research has not revealed any state constitutional or statutory bar to a legislator receiving income from a contract with a metropolitan planning organization that is funded by an Arkansas Economic Development Agency.

As a "constitutional officer," a member of the General Assembly may not enter into any contract or grant with, or receive any sub-grant from, a "state agency" unless certain statutory requirements are met. And members of the General Assembly are statutorily prohibited from entering into professional and consultant services contracts with "state agencies." But "state agency" is defined, for purposes of these statutory strictures, as "every board, commission, department, division, institution, and other office of state government." I do not believe either of the entities mentioned in your question meets this definition.

I have no specific information regarding the Metropolitan Planning Organization you have referenced. But a metropolitan planning organization ("MPO") is generally a transportation policy-making organization established through a federal designation process for certain federal programs. It seems clear from the federal law under which an "MPO" is created that these organizations are not offices of state government. See, e.g., 23 U.S.C. § 134(j) and (k) (regarding transportation plans and the development of a metropolitan transportation improvement program, or "TIP," by the designated MPO "in cooperation with the State" (emphasis added)).

Regarding the "Arkansas Economic Development District" referenced in your question, I gather this is one of the eight multi-county "economic development districts" that state law recognizes and encourages, but does not require. These districts are likewise not offices of state government. They are regional in nature, with elected local officials comprising a majority of their governing boards. The districts' operations are solely within the discretion and control of their "local governing boards of directors."

In sum, I have found no applicable state constitutional or statutory bar in the scenario you have described. But there may be some ethical considerations. Legislators are subject to the requirements of the Code of Ethics found at Ark. Code Ann. §§ 21-8-301-309, 21-8-701-704, and 21-8-801-804 (Repl. 2016 and Supp. 2017). These statutes contain various proscriptions against using one's office for personal benefit. Legislators are further required to file statements of financial interest and to report all potential conflicts of interest.

The Arkansas Ethics Commission is charged with the authority to investigate all allegations of ethical impropriety. See also Ark. Code Ann. § 21-8-303 (Repl. 2016) (acknowledging that prosecutors also have the authority to enforce the ethics statutes).

Sincerely,

Leslie Rutledge
Attorney General